NLRB Advice Memoranda, PARK LAWN CORP. - MIDWEST REGION, National Labor Relations Board, (Mar 15, 2022)

The Region submitted this case for Advice on whether the Employer violated Section 8(a)(5) by refusing to bargain over a proposal to alter the unit recognition clause of the parties' collective-bargaining agreement. We conclude that the Employer did not violate Section 8(a)(5).

The Union represents a unit of clerical employees who work for the Employer at several Detroit-area cemeteries. Since at least 2008, successive collective-bargaining agreements between the Union and the predecessor employer contained a recognition clause limiting the unit to “all hourly rated clerical employees hired prior to May 12, 2008”. In approximately 2021, the Employer acquired the business, recognized the Union, and assumed the collective-bargaining agreement in effect from July 1, 2018 through June 30, 2021. While only two employees are in the clerical bargaining unit, the Employer employs approximately 19 other clerical employees who were hired after May 12, 2008. In June 2021, the parties began bargaining for a successor agreement. The Union proposed to eliminate the limiting language, stating that non-unit clerical employees are earning higher wages than unit employees and arguing that the limiting clause violates the Act. The Employer refused to bargain over changes to the recognition clause and the Union filed the instant charge. On January 19, 2022, the parties reached tentative agreement on a successor agreement containing the original limiting language but also signed a letter of understanding stating that, if the Region found merit to the instant charge, the parties would reconvene.

We conclude that the Employer did not violate Section 8(a)(5) by refusing to bargain over the Union's proposal to alter the unit recognition clause. Unit scope—or composition of the bargaining unit—is a permissive (non-mandatory) subject of bargaining. While parties are free to voluntarily negotiate over permissive subjects of bargaining, they may not insist on them to impasse. See Taft Broadcasting Co., 274 NLRB 260, 261 (1985); cf. Grosvenor Resort, 336 NLRB 613, 616-17 (2001) (employer unlawfully declared impasse after presenting final offer that included a change in unit scope) enforced mem., 52 F. App'x 485 (11th Cir. 2002). Otherwise “an employer could use its bargaining power to restrict (or extend) the scope of unit representation.” Idaho Statesman v. NLRB, 836 F.2d 1396, 1400 (D.C. Cir. 1988), enforcing 281 NLRB 272, 272 n. 2, 276 (1986) (employer unlawfully insisted to impasse on proposals to expand mailroom unit to include trainees and exclude other existing unit employees). Furthermore, it is difficult for parties to “bargain meaningfully about wages or hours or conditions of employment unless they know the unit of bargaining.” Douds v. ILA, 241 F.2d 278, 282 (2d Cir. 1957). Here, the Union and the predecessor employer previously agreed to limit the unit to employees hired prior to May 12, 2008, and the Employer adopted the agreement when it recognized the Union. Regardless of whether the Board would have certified the instant unit, the unit description was mutually agreed upon and is not prohibited by statute. See Red Coats, Inc., 328 NLRB 205, 206 (1999). [1] While the Union was free to propose changes to the agreement's recognition clause, the Employer lawfully refused to bargain over the Union's proposal. Ultimately, since the parties have reached agreement on a successor agreement, neither party insisted to impasse on a proposal to alter the current composition of the unit.

Accordingly, for the reasons detailed above, the Region should dismiss the charge, absent withdrawal.

This email closes the case in Advice. Feel free to contact us with any questions or concerns.

(b) (6), (b) (7)(C)